A court in the Northern District of California is currently hearing expert testimony regarding a challenge to California's lethal injection protocols, which are materially similar to Florida's procedures. Morales v. Woodford, No. C-06-219-JF-RS (N.D. Cal. 2006). Rutherford deserves the same opportunity. Consequently, I would grant Rutherford's Application for a Stay of Execution, permitting him to return to the district court for a hearing on the merits of his § 1983 claim.

A federal judge considering the constitutionality of the way California kills condemned inmates has asked prosecutors and defense lawyers a series of questions — including how the lethal injection procedures could be improved — that pose difficulties for both sides, experts say.